Albany Steel, Inc.

National Labor Relations Board - Board Decisions

Nov 9, 1992

309 N.L.R.B. 442 (N.L.R.B. 1992)

442
309 NLRB No. 70
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 On January 27, 1992, Administrative Law Judge Robert W.
Leiner issued the attached decision. The Respondent filed exceptions
and a supporting brief.
The National Labor Relations Board has delegated its authority in
this proceeding to a three-member panel.
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
In accord with the Respondent’s exceptions, we note the following
factual errors in the judge’s decision:
1. The judge mistakenly stated that Union Administrator Thomas
knew the Respondent’s views expressed in a November 27, 1990 let-
ter when Thomas sent a notice of an informational meeting to em-
ployees. Thomas sent the notice on March 20, 1990, several months
prior to the Respondent’s letter.
2. In addressing the Respondent’s argument that the Union was
defunct, the judge indicated that the Respondent bargained with the
Union for ‘‘over a year’’ after the resumption of negotiations in
1990. In fact, the parties recommended contract negotiations after a
lengthy hiatus on June 28, 1990. Their last bargaining session oc-
curred on September 25, 1990. They did not have another bargaining
session prior to the Respondent’s withdrawal of recognition on April
1, 1991.
3 In adopting the judge’s finding that the Respondent did not prove
objective considerations supporting a good-faith doubt of the
Union’s majority status, we find it unnecessary to rely on: the find-
ing that the Union’s September 27, 1990 letter broke any bargaining
impasse which may have existed; the judge’s construction of the ma-
jority opinion in Phoenix Pipe & Tube Co., 302 NLRB 122 (1991),
enfd. 955 F.2d 852 (3d Cir. 1991), to be that ‘‘a repudiation by a
mathematical majority’’ is necessary to establish an employer’s
claim of good-faith doubt; and the finding that, assuming, arguendo,
employees had clearly stated their rejection of the Union at meetings
with the Respondent’s president, Hess, such statements were tainted
and not probative because of Hess’ notorious antiunion attitude.
4 The recommended Order and notice include provisions requiring
the Respondent to make whole the Union and unit employees for
any losses suffered as a result of the unlawful withdrawal of recogni-
tion ‘‘and subsequent unilateral acts.’’ In the absence of any allega-
tion or proof of unlawful unilateral changes attendant to the with-
drawal of recognition, we find the recommended make-whole provi-
sions to be inappropriate. We shall delete them.
Albany Steel, Inc. and Shopmen’s Local Union No.
534 of the Bridge, Structural and Ornamental
Iron Workers. Case 3–CA–16327
November 9, 1992
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
The central question presented here1 is whether the
judge correctly concluded that the Respondent violated
Section 8(a)(5) and (1) of the Act by withdrawing rec-
ognition from the Union on April 1, 1991. In reaching
this conclusion, the judge found that the Respondent
had failed to prove its affirmative defenses that the
Union was defunct and/or that the Respondent with-
drew recognition based on objective considerations
supporting a good-faith doubt of the Union’s continu-
ing majority status.
The Board has considered the decision and the
record in light of the exceptions and brief and has de-
cided to affirm the judge’s rulings, findings,2 and con-
clusions3 and to adopt the recommended Order as
modified.4
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Al-
bany Steel, Inc., Menands and Glenmont, New York,
its officers, agents, successors, and assigns, shall take
the action set forth in the Order as modified.
1. Delete paragraph 2(c) and reletter the subsequent
paragraphs.
2. Substitute the attached notice for that of the ad-
ministrative law judge.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT refuse to recognize and bargain with
Shopmen’s Local Union No. 534 of the Bridge, Struc-
tural and Ornamental Iron Workers as the exclusive
bargaining representative of our employees in the ap-
propriate unit below described.
WE WILL NOT in any other manner interfere with,
restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL furnish to the Union the information which
it requested in writing on about March 14, 1991, and
which is relevant to its duties as representative of our
employees.
WE WILL recognize and, on request, bargain with the
Union and put in writing and sign any agreement
reached on terms and conditions of employment for
our employees in the following bargaining unit:
443ALBANY STEEL
1 The underlying unfair labor practice charge was filed and served
on Albany Steel Inc., the Respondent, on May 22, 1991, by the
Charging Party, the above-captioned Shopmen’s Local Union No.
534 (the Union). The joint motion of counsel, dated January 7, 1992,
to correct the official transcript, is granted.
2 Respondent admits that its president, Peter Hess, has been and
is, at all material times, its supervisor and agent within the meaning
of Sec. 2(11) and (13) of the Act.
All production and maintenance employees en-
gaged in the fabrication of iron, steel, metal and
other products or in maintenance work in or about
our plant or plants located in Menands, New York
and Glenmont, New York; excluding office cleri-
cal employees, draftsmen, engineering employees,
watchmen, guards, and supervisors.
ALBANY STEEL, INC.
Alfred M. Norek, Esq., for the General Counsel.
Mary Helen Moses, Esq. (O’Connell & Aronowitz, P.C.), Al-
bany, New York, for the Respondent.
DECISION
STATEMENT OF THE CASE
ROBERT W. LEINER, Administrative Law Judge. This mat-
ter was heard in Albany, New York, on September 30 and
October 1, 1991, on General Counsel’s July 5, 1991 com-
plaint1 which alleges, in substance, that Albany Steel, Inc.,
violated its collective-bargaining obligation under Section
8(a)(5) and (1) of the National Labor Relations Act (the
Act), by unlawfully withdrawing recognition from the Union,
and by unlawfully failing and refusing to furnish the Union
with certain information requested by the Union. Respond-
ent’s timely answer, dated July 12, 1991, admits that it has
failed and refused to furnish the Union with the requested in-
formation, admits that it has withdrawn recognition of the
Union as the exclusive bargaining agent of a certain unit of
Respondent’s employees and admits that it has refused to
bargain with the Union. Respondent asserts, however, that its
withdrawal of recognition and its refusal to bargain were
lawful, based on the defunctness of the Union and, alter-
natively, on a good-faith doubt that the Union continued to
represent a majority of its employees in the aforesaid unit
commencing no later than the time the request for informa-
tion was made. Respondent denies the commission of any
unfair labor practices.
At the hearing, all parties were represented by counsel,
were given full opportunity to call and examine witnesses, to
submit relevant oral and written evidence, and to argue orally
on the record. At the close of the hearing, the parties waived
final argument and elected to submit posthearing briefs
which have been carefully considered.
On the entire record, including the briefs, and on my most
particular observation of the demeanor of the witnesses as
they testified, I make the following
FINDINGS OF FACT
I. RESPONDENT AS STATUTORY EMPLOYER
The complaint alleges, Respondent admits, and I find, that
at all material times, Respondent, a New York corporation
with a principal office and place of business in the village
of Menands, State of New York, has been and is engaged
in the fabrication of steel products. During the 12-month pe-
riod ending July 1991, a representative period, Respondent,
in the course and conduct of its business operations, derived
gross revenues in excess of $500,000 and, during the same
period purchased and received at its Menands facility goods
and materials valued in excess of $50,000 which were
shipped directly from points outside the State of New York.
Respondent concedes, and I find, that at all material times,
he has been and is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.2
II. THE UNION AS STATUTORY LABOR ORGANIZATION
The complaint alleges, but Respondent denies, that at all
material times, Shopmen’s Local Union No. 534 of the
Bridge, Structural and Ornamental Iron Workers (the Union)
has been and is a labor organization within the meaning of
Section 2(5) of the Act. Respondent asserts that the Union
became defunct on or about June 16, 1989 (Tr. 21). As noted
hereafter, having found that Respondent failed to prove that
defense, I conclude that, at all material times, the Union has
been and is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Pleadings
The complaint alleges and Respondent admits that the fol-
lowing unit of Respondent’s employees constitutes a unit ap-
propriate for the purposes of collective bargaining within the
meaning of Section 9(b) of the Act:
All production and maintenance employees engaged in
the fabrication of iron, steel, metal and other products
or in maintenance work in or about the Respondent’s
plant or plants located in Menands, New York and
Glenmont, New York; excluding office clerical employ-
ees, draftsmen, engineering employees, watchmen,
guards and supervisors.
Whereas General Counsel further alleges that the Union,
at all material times, has been, and is, the exclusive statutory
representative of unit employees for the purposes of collec-
tive bargaining under Section 9(a) of the Act, and has been
recognized as such in a series of collective-bargaining agree-
ments, Respondent admits only that Respondent and the
Union have been parties to a series of collective-bargaining
agreements, the most recent of which was in effect from De-
cember 1, 1985, to November 30, 1988. Consistent with its
defenses, Respondent denies that the Union has been and is
the exclusive representative of unit employees for the pur-
pose of collective bargaining ‘‘at all material times herein’’
(G.C. Exh. 1(e)).
Respondent admits that on or about March 14, 1991, the
Union requested, in writing, that Respondent furnish to the
Union various items of information relating to (a) the names,
addresses, and rates of pay of its current production and
maintenance employees, (b) the cost of all monetary fringe
444 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 The collective-bargaining agreement contains union-security and
checkoff clauses. The union-security clause requires, as a condition
of employment, unit employees to be or become a union member
not later than the 31st day following the beginning of employment
or the effective date of the agreement whichever is later, and to re-
main of the union in good standing to the extent authorized by Sec.
8(a)(3) of the Act. The agreement also contains a three-step griev-
ance procedure terminating in arbitration. The grievance machinery
(G.C. Exh. 2, p. 19, et seq.) places union shop stewards in prominent
roles. Shop stewards, under the collective-bargaining agreement, are
appointed by the Union from among members employed by Re-
spondent.
4 Respondent failed to take exception to Judge MacDonald’s rec-
ommended Order of March 13, 1990, and, on May 30, 1990, the
Board issued its pro forma Order adopting the findings and conclu-
sions of Judge MacDonald, directing that Respondent, its officers,
agents, successors, and assigns, take the action set forth in the rec-
ommended Order.
benefits, (c) whether Respondent was presently subcontract-
ing any bargaining unit work, (d) whether it had done so
since on or about December 1, 1988, (e) the nature of the
subcontracted work, (f) the companies to whom the work
was subcontracted. While Respondent’s answer denied that
the requested information was necessary or relevant to the
Union’s performance of its function as the exclusive bargain-
ing unit representative, it nevertheless stated at the hearing
(Tr. 21–22) that the requested information is relevant and
that it had no objection to submitting the information to the
Union if the Union, in fact, were the lawful collective-bar-
gaining representative.
Respondent admits that on April 1, 1991, it withdrew rec-
ognition of the Union as the statutory representative of unit
employees and that it has failed and refused, and continues
to fail and refuse, to furnish the above-requested information.
Respondent pleads, in substance, that it did so because,
doubting both the Union’s legal existence and the Union’s
majority representative status, it had no statutory obligation
to do so. Respondent denies, therefore, that it refused unlaw-
fully to bargain with the Union.
B. Background
At the hearing, General Counsel asserted, and it was not
disputed, that the Union and Respondent have engaged in
collective bargaining in excess of 25 years; but that in the
last 3 years, the relations between the parties have not been
harmonious. Peter J. Hess, Respondent’s president, has been
employed by Respondent since 1979, has been its chief exec-
utive officer since 1985, and since 1979, he has been in
charge of negotiating collective-bargaining agreements with
the Union. As president and chief executive officer, he has
supervised Respondent’s approximately 100 employees in
five divisions: the warehouse division, employing 50 or more
employees; its fabrication division, employing about 20 em-
ployees; its fastener division employing about 6 employees;
its reinforcing bar division, employing about 4 employees
and its machine shop division (Asisco Division), at a plant
in nearby Selkirk, New York, employing about 20 employ-
ees. Respondent and the Union, on or about December 1,
1985, executed a collective-bargaining agreement covering
the 100 unit employees which agreement expired on Novem-
ber 30, 1988.3
Commencing in the period about 2 months before expira-
tion of the 3-year collective-bargaining agreement (Novem-
ber 30, 1988), Respondent, principally through its president,
Peter Hess, engaged in various unfair labor practices in deal-
ing with both unit employees and the Union. Based on the
Union’s unfair labor practice charges filed thereafter, General
Counsel issued a complaint alleging violations of Section
8(a)(1), (3), (4), and (5) of the Act. Following 7 days of
hearing in Albany, New York, between February 6 and April
5, 1989, Administrative Law Judge Eleanor MacDonald, on
March 13, 1990, found that, as alleged, Respondent had com-
mitted numerous serious violations of Section 8(a)(1), (3),
(4), and (5) of the Act. In particular, Judge MacDonald con-
sequently ordered Respondent to cease and desist from:
(a) Suspending employees, informing employees that
they may not return to work from disability and refus-
ing to reinstate them after disability because of their
union activities.
(b) Discharging its employees because they support
the Union and because they file charges and give affi-
davits to the NLRB.
(c) Failing to pay bonuses to its employees because
of their union activities.
(d) Refusing to comply with the Union-security pro-
visions of the collective-bargaining agreement.
(e) Unilaterally implementing collective-bargaining
proposals without the consent of the Union absent a
valid, preexisting impasse in bargaining.
(f) Refusing to bargain with the Union pending the
outcome of a decertification effort and failing to bar-
gain in good faith with the Union.
(g) Assisting, encouraging and sponsoring the em-
ployees to decertify the Union.
(h) Promising employees improved benefits and
working conditions and promising to redress grievances
if the Union is decertified.
In addition, Judge MacDonald ordered Respondent affirm-
atively to:
(1) On request bargain with the Union as the exclu-
sive representative of employees in the appropriate unit
[the same unit as appears in the instant proceeding].
(2) Offer [union president] Michael O’Connell im-
mediate and full reinstatement to his former job [from
which he was unlawfully terminated] and make him
whole for loss of earnings resulting from the discrimi-
nation against him [unlawful discharge].
(3) Make whole Michael O’Connell, Raymond Ash-
ley [union officer] and Frank Turner [shop steward] for
any loss of earnings and benefits suffered as a result of
their unlawful suspensions and as the result of the un-
lawful refusal to reinstate Michael O’Connell after his
absence for disability.
Prior to the issuance of Judge MacDonald’s recommended
Decision and Order of March 13, 1990,4 the Union, on Sep-
tember 27, 1989, filed a further unfair labor practice charge
(Case 3–CA–15201) alleging violation of Section 8(a)(1) and
(5) of the Act, because of Respondent’s refusal to provide
the Union with certain information, requested on or about
August 16, 1989. Complaint duly issued on November 1,
445ALBANY STEEL
5 All written communications between Respondent and the Union,
on this record, are solely via certified mail with attendant proof of
receipt.
1989, and that case was heard by Administrative Law Judge
Joel P. Biblowitz in Albany, New York, on December 5,
1989. Before issuance of Judge MacDonald’s recommended
Decision and Order, Judge Biblowitz issued his rec-
ommended Decision and Order on February 5, 1990. He
found Respondent, as alleged, in violation of Section 8(a)(5)
of the Act and directed Respondent to cease and desist from
refusing to bargain in good faith and to promptly furnish the
Union, as had been requested, with the names, addresses,
dates of hire, job classifications and rates of pay of all pro-
duction and maintenance employees.
Judge MacDonald, thus having in hand Judge Biblowitz’
February 5, 1990 decision and recommended Order, found,
on March 13, in the case before her, that Respondent had en-
gaged in ‘‘egregious misconduct demonstrating a general dis-
regard for the employees’ fundamental rights and . . . a pro-
clivity for violating the Act [see Albany Steel, supra].
Judge MacDonald’s findings (in a case demonstrating Re-
spondent’s unlawful discharge and layoff of unit employees,
and Respondent’s failure to bargain in good faith with the
Union in various respects) included a finding of Respond-
ent’s (Hess’) unlawful sponsoring of a decertification move-
ment among its unit employees.
In her finding of Hess’ unlawful sponsorship of employee
decertification activities, Judge MacDonald referred to Presi-
dent Hess’ less than cordial feelings in dealing with both
unionized employees and the Union as their collective-bar-
gaining agent. Despite 10 years’ of collective-bargaining ex-
perience with the Union and his admitted formal academic
training in labor relations (Tr. 463), Peter Hess made no se-
cret of his union animus. During his unlawful sponsorship of
the decertification movement, he told employees that they
would be better off without a union, that the decertification
movement was a ‘‘great idea’’ (G.C. Exh. 3(A), p. 18), and
that he anticipated that the Union would be out of Respond-
ent within a month’s time following the decertification vote.
When, at a late 1988 meeting with employees, an employee
then asked him why he was so antiunion, Hess frankly re-
plied that he ‘‘hated the fucking Union’’ (G.C. Exh. 3(A),
p. 18).
At a further employee meeting, President Hess apparently
felt obliged to clarify and particularize his animus so that
unit employees would suffer no misapprehension concerning
his subjective state of mind in dealing with the Union. Thus,
when employees at the meeting asked him why he did not
get along with the Union, he first blamed the Union for graf-
fiti, vandalism, grievances, and an OSHA inspection and then
told the employees that ‘‘when union officials finally get
ready for our very first meeting, I’m in a frame of mind
where I want to pick them up and throw them out the win-
dow and we haven’t even started negotiations’’ (G.C. Exh.
3(A), p. 19).
In the hearing before Judge Biblowitz, one of Respond-
ent’s defenses for its failure to supply relevant information
requested by the Union was Hess’ testimony in which he de-
nied having received the Union’s request at all. Although the
Union’s request had been dispatched in certified mail,5 cor-
rectly addressed to Respondent and received by Respondent’s
agent, President Hess testified that he suspected that the en-
velope might have been addressed to someone other than
himself; that this device was actually a means of Union de-
ception whereby the Union could claim that Respondent re-
ceived the information request whereas it actually had not
found its way into Respondent’s possession. Judge Biblowitz
found Hess’ testimony to constitute ‘‘pure speculation’’ and
‘‘unwarranted’’; found the Union’s supporting witness
[Thomas] to be ‘‘very credible and articulate’’; and found
Hess’ testimony, that Union Administrator Thomas would
purposely misdirect the letter in order to go through a Board
hearing, thereby delaying for a year or two his receipt of this
requested information, to be ‘‘preposterous.’’ (Administrative
Law Judge Biblowitz’ decision.)
On April 9, 1991, the Region found that Respondent had
complied with the affirmative requirements of [Judge Mac-
Donald’s] Board Order and closed the consolidated cases
subject to Respondent’s continued observance of Judge Mac-
Donald’s order (G.C. Exh. 32).
C. The Union Placed Under Administration
June 16, 1989
While the record is unclear concerning the dates of incum-
bency, there is no dispute that James Gethins, prior to June
16, 1989, had been president of the Local Union. He was
succeeded by Michael O’Connell who was president prior to
and during the unfair labor practice hearings before Judge
MacDonald. During his incumbency, James Gethins was
charged with embezzlement of local union funds and was
under investigation by the United States Department of
Labor. On June 16, 1989, in the presence of the alleged em-
bezzlement, the approaching contract negotiations with Re-
spondent and the recently closed unfair labor practice hear-
ings before Judge MacDonald, the general executive board of
the International Union, under the International constitution,
issued a unanimous decision, effective July 1, 1989, whereby
(a) all offices of the local union were declared vacant; (b)
all business affairs of the local union were to be administered
by Robert S. Thomas, designated as administrator of the
local union; and (c) all officers of the local union were in-
structed to surrender all funds, assets, and property of the
local to Administrator Thomas who would thereafter admin-
ister its affairs. An acting local president (employed by a
neighboring employer) was named. This decision was made
known by a letter to each member of the local and was
signed by the International officers (G.C. Exh. 33).
On July 8, 1989, Administrator Robert S. Thomas notified
Respondent that the general executive board of the Inter-
national Union had designated him as administrator and that
all matters relating to the Local Union should be directed to
him at an Albany, New York address (G.C. Exh. 5).
D. The Instant Case
Following Administrator Thomas’ July 8, 1989 notification
to Respondent that he was named administrator and that Re-
spondent should deal with him concerning the Local Union’s
affairs, there then follows a 9-month hiatus in any commu-
nication or other relationship, on this record, between the
parties.
On April 17, 1990, with no Respondent exceptions filed,
the Union wrote to Respondent (G.C. Exh. 6). Citing the
446 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 The record is replete with further communications between the
parties, a union unfair labor practice charge (subsequently with-
drawn) and ultimate agreement of the parties to meet on and after
June 28, 1990, in collective bargaining.
7 The dates of subsequent bargaining sessions are: July 10, 18, and
31, August 29, and September 25, 1990.
issuance of Judge MacDonald’s March 13, 1990 bargaining
order, the Union requested Respondent to commence contract
negotiations. The Union’s request for bargaining did not re-
sult in agreement of the parties concerning the place and
other mechanics of bargaining until on or about June 21,
1990.6 The ensuing collective-bargaining sessions starting
June 28, 1990, were on an amicable basis (Tr. 399).7 Re-
spondent did not question the Union’s representative status.
Administrator Thomas, the Union’s chief spokesman, was
often accompanied by one or more of the three shop stew-
ards, William Ziman, Frank Turner, and Ben Bylo (G.C.
Exh. 35). Respondent was represented by Peter Hess as chief
spokesman; Attorney Mary Helen Moses; Plant Manager
Mark Flanagan and Supervisors Watson and Dmyszewicz
(G.C. Exh. 35). Hess described the status of prior negotia-
tions because Thomas had not participated in the prior nego-
tiations, the last of which had occurred on March 6, 1989,
during Judge MacDonald’s unfair labor practice hearings
(G.C. Exh. 35). The unresolved issues included wages, the
employee evaluation bonus, the term and expiration date of
the contract, dues checkoff, and union security (Tr. 64–66).
During the June 28 session, Respondent made a contract pro-
posal on which Thomas requested time for analysis.
At the July 18, 1990 session, the Union rejected Respond-
ent’s proposal without making one of its own.
At the July 31, 1990 meeting, the meeting broke up after
Hess had given Thomas further information concerning the
status of negotiations at prior meetings, much of which he
had previously provided to Thomas. In any event, the bar-
gaining climate at the meeting grew hot and Thomas walked
out, canceling all future meetings (Tr. 400).
There followed an exchange of letters between the parties
whereby they agreed to return to the bargaining table on Au-
gust 29, 1990. That session, according to Hess, was amiable
and resulted in a written union contract proposal (Resp. Exh.
2). Respondent, following a 2-hour lunch break, rejected the
Union’s proposal but returned with a counterproposal (R.
Exh. 3). Hess analyzed Respondent’s counterproposal, show-
ing that Respondent had accepted 8 of 10 of the Union’s
original proposals and that the principal obstacle to agree-
ment was the Union’s insistence on a union-security clause.
With regard to further bargaining, Thomas then told Hess
that he could not meet during the following month but during
that time the Union would think about and report at the next
meeting, set for September 25, on Respondent’s counter-
proposal. (Tr. 405–406). Thomas admitted at the hearing
that, at the August 29, 1990 meeting, he had accepted Re-
spondent’s offer of 3 percent and 4 percent wage increases
for the first 2 years of a proposed agreement but testified that
such agreement was tied to the Union’s package proposal,
presented at the previous meeting, particularly its demand for
a union-security clause (Tr. 70).
At the September 25, 1990 collective-bargaining session,
although other minor matters may have been changed, it is
undisputed that the union presented a different union-security
clause, (maintenance of membership) changed the requested
expiration date, from November 30 to October 1 (which Hess
regarded as a critical change (Tr. 409)), but now also insisted
that the wage increase be increased in the first year from 4
percent to 5 percent and in the second year from 3 percent
to 4 percent. Hess told Thomas that he felt that they had al-
ready reached agreement on wages but that now the Union
was going in the opposite direction (Tr. 410). Thomas re-
plied that the Union’s prior proposal, including the appar-
ently objectionable union-security clause, was part of a pack-
age and that, with the Union now proposing a modified
union-security clause, all the terms and conditions of prior
bargaining were up for renegotiation (Tr. 410–411). When
Attorney Moses questioned Thomas about the meaning of the
modified union-security clause, particularly the meaning of
‘‘membership in good standing,’’ Thomas failed or refused
to answer the attorney’s questions. According to Thomas, the
principal issue, however, was Hess’ insistence that there be
no union-security clause at all (Tr. 74). Thomas admitted that
Hess accused the Union of changing its wage proposal but
Thomas told him that the Union’s changed wage proposal
was a result of the Union’s agreeing to a substantial change
in the union-security provision (Tr. 75); and that if the new
union-security clause was unacceptable to Respondent, the
Union was prepared to withdraw its entire proposal (Tr. 75-
76). When Administrator Thomas then asked Hess if he had
any response or further proposal, Hess told him that Re-
spondent’s proposal was on the table and that Respondent
had no further proposal to make, and that the parties were
at impasse.
After Hess said he was not prepared to make any further
proposals and Thomas said that he was not making any fur-
ther proposals either (Tr. 76), the meeting ended when
Thomas picked up his papers, got up and walked out of the
door (Tr. 76). Although several of the Union’s shop stewards
testified at the hearing, they did not corroborate Thomas’
contrary version of how the September 25, 1990 collective-
bargaining session ended. Rather, I credit the testimony of
Peter Hess, as corroborated by Supervisor William (Bill)
Dmyszewicz, that Thomas left the room after gathering up
his papers; was shortly followed by the other union bar-
gainers (Turner, Ziman, and Bylo, all of whom testified and
none of whom corroborated Thomas); who were shortly fol-
lowed by Hess who also left the room. If the matter were
significant, I would find that Administrator Thomas left the
room in an emotional state, having been rebuffed by Hess’
rejection of both the new union-security proposal and the in-
creased wages that Thomas proposed. Upon both sides agree-
ing that neither side had further proposals to make and Hess
having stated that the parties were at impasse, it was this
state of affairs that propelled Thomas to gather up his papers
and to leave the meeting. I also credit Hess’ testimony that
he then trailed Thomas out of the meeting, asked him if they
were through and Thomas told him not only that he was
through, but he was not negotiating any further (Tr. 412).
Hess then returned to his bargaining committee and told
them that Thomas was not returning.
On the same day that Thomas walked out of the meeting,
September 25, 1990, Respondent addressed a letter to him
memorializing that the Union’s proposal had been presented
at that September 25 meeting and, upon Respondent’s rejec-
tion, the Union withdrew its proposal (G.C. Exh. 23). In ad-
dition, the letter observes, and Thomas admits (Tr. 78), that
447ALBANY STEEL
8 In fact, Respondent received the Union’s September 27 certified
letter on October 1, 1990, according to the Postal Service green card
apparently signed by Hess himself (G.C. Exh. 24, p. 2).
9 Turner and Bylo are shop stewards at the main warehouse facility
in Menands, New York. Ziman is the shop steward at Respondent’s
Asisco (machine shop) facility in nearby Selkirk, New York (Tr. 99).
the parties had previously already agreed to further bargain-
ing sessions on October 2 and 3, 1990. Respondent, in the
letter, states that it continued to hold those dates open for
collective bargaining (G.C. Exh. 23).
After walking out on September 25, but before the ap-
proaching October 2 and 3, 1990 collective-bargaining dates,
Thomas sent a letter, by certified mail (G.C. Exh. 24) to Re-
spondent on September 27, 1990. Thomas’ September 27 let-
ter, according to the stipulation of the parties (Tr. 81–82),
was received by Respondent before October 2, 1990.8 That
September 27 union letter to Respondent states, inter alia,
that (1) the Union’s complete contract proposal was rejected
by Respondent; and (2) Respondent declared that the parties
had reached impasse notwithstanding Respondent’s refusal to
present any further proposals. In particular, Thomas’ letter to
Respondent further states:
Be advised that we are prepared to continue negotia-
tions and we are prepared to submit and discuss pro-
posals in an attempt to resolve the many issues that
have not been resolved.
Please advise the undersigned at the above return ad-
dress whether or not you intend to continue negotia-
tions.
Sincerely,
Robert S. Thomas
Administrator
To the extent Hess testified (Tr. 413) that he did not re-
ceive Thomas’ September 27, 1990 letter (expressing both
the Union’s desire to negotiate further and its willingness to
submit and discuss proposals) until 1 month after Respondent
had sent its September 25 letter (G.C. Exh. 23) to the Union,
I specifically discredit Hess’ testimony. This necessarily fol-
lows not only from the stipulation of the parties (that the
Union letter was received before October 2) but by the
record evidence that it was received, indeed, on October 1,
1990, within a week after Hess’ September 25 letter to the
Union (G.C. Exh. 23). This discredited testimony was elic-
ited for the apparent purposes of showing Respondent’s inno-
cence in keeping open the October 2 and 3 bargaining dates
and the Union’s indolence and lack of bargaining interest.
Since Respondent received the union letter before the sched-
uled October 2 and 3 negotiating dates there could be no in-
ference that the Union’s failure to appear on those dates sig-
nalled the Union’s desire to refrain from further bargaining.
Thomas testified, and I credit his testimony, that he did
not appear at the October 2 or 3 collective-bargaining ses-
sions, previously agreed upon, because of the bargaining heat
generated at the September 25 meeting, albeit that he gen-
erated much of it. His judgment was that it would be better
to ‘‘let things cool down before you go at it again’’ (Tr. 79).
I credit this testimony notwithstanding that Thomas testified
that he discussed this strategy (Tr. 79–80) with his shop
stewards (Bylo, Turner, and Ziman) and none of these shop
stewards corroborated such testimony. I reject Respondent’s
argument that Thomas’ tactics were designed to thwart good-
faith bargaining; but even if true, his tactics are not persua-
sive on the issues presented herein.
Hess testified that after he received Thomas’ September 27
letter (G.C. Exh. 24) requesting further bargaining with Re-
spondent (Tr. 418-419), Respondent never heard from Thom-
as again until March 1991 when Respondent received his re-
quest for information concerning Respondent’s current em-
ployees and its subcontracting of unit work (G.C. Exh. 30,
Mar. 14, 1991), the requests which triggered the instant com-
plaint. I also discredit this further Hess testimony. It appears
that on or about September 17, 1990, Respondent was
obliged to initiate a drug testing program for its drivers (G.C.
Exh. 27). In response to a memorandum concerning this pro-
gram to employees posted by Respondent in the plant on or
about September 17, 1990 (G.C. Exh. 27), the Union wrote
to Respondent on or about December 15, 1990, opposing
unilateral random drug testing of unit employees (G.C. Exh.
26). The Union’s December 15 letter shows that it was deliv-
ered to Respondent on December 21, 1990 (G.C. Exh. 26,
p. 2). Thus, Hess’ testimony that he did not hear from the
Union between his receipt of the Union’s September 27,
1990 request for further negotiations and March 1991 is in-
consistent with and undermined by Hess’ receipt of the
Union’s December 15, 1990 written objection to Respond-
ent’s drug testing program. The Union’s letter necessarily is
indicative of a desire to protect employee interests regardless
of the merits of the Union’s position.
On or about March 20, 1990, Thomas sent a notice of an
‘‘informational meeting’’ to unit employees of Albany Steel
to be held on March 28, 1990 (G.C. Exh. 36). In addition,
Thomas testified (and the shop stewards corroborated) that in
the hiatus between the last collective-bargaining session on
September 25, 1990, and March 1991, Thomas held five or
six ‘‘informational meetings’’ with his shop stewards and or-
dinarily with about a dozen employees. At the March 28,
1990 meeting, following issuance of Judge MacDonald’s de-
cision, about 36 employees attended (Tr. 261–262). These
meetings were held both in the union hall and in Thomas’
Albany hotel room (Tr. 94–98).9 In addition, Thomas had
been holding meetings of the Local’s members employed by
other employers in the area. As a result of those meetings,
a collective-bargaining agreement was negotiated between
the Local Union and one of the Albany area employers. I
agree with Respondent’s arguments that Thomas’ testimony
concerning these meetings and particularly the number of Re-
spondent’s employees present was not persuasive. I find,
however, that there were some meetings at which shop stew-
ards and a small number of Respondent employees attended.
By the time Thomas sent the March 20 notice of an ‘‘in-
formational meeting’’ to unit employees, he already knew,
from a Respondent letter of November 27, 1990 (G.C. Exh.
25), that Respondent considered the Union’s continued si-
lence to be a demonstration of the parties continued ‘‘im-
passe’’ and that Respondent notified him of its intent to
place in effect its proposed wage increases which had been,
and which remained, on the bargaining table as of September
25, 1990. Those wage increases would be effective Decem-
ber 3, 1990 (G.C. Exh. 25). Respondent noted, in its Novem-
448 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
10 This request was similar to the Union’s August 16, 1989 re-
quest, Respondent’s rejection of which formed the basis of Judge
Biblowitz February 5, 1990 finding of a violation of Sec. 8(a)(5)
(G.C. Exh. 3(B)). Thomas needed the subcontracting information in
order to intelligently continue to bargain.
ber 27, 1990 letter, that the Union’s silence and its unwill-
ingness to make further proposals indicated that there was no
realistic possibility that a continuation of bargaining at this
time would be ‘‘fruitful’’ (G.C. Exh. 25). The Union took no
action concerning Respondent’s proposed unilateral imple-
mentation of the wage increases. Indeed, Administrator
Thomas admitted that, knowing of these proposed unilateral
wage increases, he decided to have them go into effect be-
cause the employees had not received a wage increase for a
year.
About a week prior to the time that Respondent dispatched
its March 20 letter to unit employees notifying them of the
March 28 informational meeting (G.C. Exh. 36), it sent two
letters, both dated March 14, 1991, to Respondent (G.C. Exh.
29, 30). In the first, noting its position as exclusive collec-
tive-bargaining representative of all production and mainte-
nance employees, the Union requested that Respondent sub-
mit a current list of unit employees, including dates of hire,
classification, hourly wage rate, and home address, and also
the amount of the Respondent’s current costs of all monetary
fringe benefits including medical premiums (G.C. Exh. 29).10
Its other letter (G.C. Exh. 30), again noting its position as
exclusive collective-bargaining representative, requested in-
formation concerning whether Respondent was presently sub-
contracting any [unit] work; whether any such subcontracting
occurred since December 1, 1988 (i.e., after expiration of the
last collective-bargaining agreement); and the nature of the
work subcontracted together with the names of the employers
to whom the subcontracting had been awarded.
Respondent answered these requests for information on
April 1, 1991 (G.C. Exh. 31), the text of which reply is:
Dear Mr. Thomas:
You have requested, as the collective bargaining rep-
resentative of our employees, that we supply you with
certain information.
At this point, it is our belief that your union no longer
represents a majority of the employees in the unit. We
base this belief on a number of facts:
1. You walked out of negotiations on September 25,
1990, when you refused to accept our last proposal
(much of which embodied a prior proposal made by
you). At that meeting, you stated unequivocally that
you had no more proposals for Albany Steel.
2. By letter dated September 25, we notified you that
we were prepared to continue negotiations on October
2 and 3, dates to which you had already agreed, and
any other dates which you might have available. You
have not asked for any negotiation dates; you did not
appear for the October 2 and 3 meetings.
3. On November 27, we informed you by letter that
we intended to implement a wage increase based on our
proposal which was on the table September 25. You did
not respond to the letter. The wage increase was imple-
mented.
4. You have not responded in any way to our offers
to negotiate indicated above.
5. It is our understanding that the union is no longer
holding meetings.
6. We are not aware of there being any employees
who are designated as shop stewards, and we are not
aware of any efforts on the union’s part to police em-
ployee rights in over a year.
7. It is our understanding that Local 534 no longer
has officers, and is essentially defunct as a local.
8. It is our understanding that very few, if any, of
our employees have remained members of the union,
that none are paying dues, and that most employees of
Albany Steel believe that they are not represented by a
union.
In light of these facts, as well as the fact that the employees
of Albany Steel have been working without a contract since
December 1, we believe that Local 534 no longer represents
a majority of the employees in the designated unit. We be-
lieve that we have negotiated in good faith with the Union’s
bargaining team, while it existed, and have more than com-
plied with the Board’s bargaining Order issued last year.
On this basis, we are refusing to supply you with the
requested information.
Sincerely,
Peter J. Hess
President
Following this April 1, 1991 reply, which Respondent’s
answer admits was a withdrawal of recognition, the Union
filed an unfair labor practice charge on May 22, 1991, which
was followed thereafter by issuance of the instant complaint.
At the hearing, as above noted, Respondent conceded that
the information requested by the Union was relevant and, as
I understood Respondent, essentially conceded that Respond-
ent’s failure to supply the requested information would con-
stitute a violation of Section 8(a)(5) of the Act but for Re-
spondent’s defenses to the obligation to supply such informa-
tion: (1) that the Union, commencing June 16, 1989, was de-
funct; and (2) that, in any event, Respondent, at least as early
as April 1, 1991, had a good-faith doubt of the Union’s con-
tinued status as the majority representative of Respondent’s
unit employees and therefore was under no obligation to sup-
ply the information.
E. Respondent’s Defenses
1. The Union was defunct commencing June 16, 1989
Respondent’s opening position with regard to the Local
Union ‘‘defunctness’’ was apparently based on the Inter-
national Union’s causing the dismissal of all local union offi-
cers and the substitution therefore of an administrator (Rob-
ert Thomas) on June 16, 1989. Respondent has failed to sub-
mit authority which might indicate that the mere assumption
by an International Union of the affairs of an affiliated local
union through an administrator per se constitutes defunctness
of the Union. Cf. Bickerstaff Clay Products, 286 NLRB 295,
299 (1987), Waikiki Plaza Hotel, 284 NLRB 23 fn. 1 (1987).
Commencing June 16, 1989, when Robert Thomas assumed
the legal position of local union ‘‘Administrator,’’ and July
8, 1989, when he notified Respondent thereof (G.C. Exh. 5),
449ALBANY STEEL
11 The evidence is in dispute when the Union posted on Respond-
ent’s bulletin boards notices of meetings of its members. Thomas
testified that he was told that the March 20, 1990 notice of an infor-
mational meeting was posted (G.C. Exh. 36). There was no direct
corroboration of this fact. Perhaps one of the reasons for the dif-
ficulty of proving the bulletin board posting of union notices is that
while employees see them from time-to-time, they ‘‘don’t last very
long . . . they just get taken down’’ (employee John Musella, Tr.
327).
he, rather than elected officers, appears to have carried out
the affairs of the Union with all union authority and funds
placed in his hands. Whereas, for instance, the collective-bar-
gaining agreement (G.C. Exh. 2, p. 19) requires that the
Union inform Respondent, in writing, of the names of its
members who have been appointed shop stewards, there is
no indication that Thomas notified Respondent that there
were no shop stewards or that existing shop stewards had
lost their offices. In addition, although Respondent argues
that its engaging in collective bargaining was under the aegis
of a Board order compelling such bargaining, it nevertheless
failed at any time to apprise either the Union or the Board
of its position that it was dealing with a defunct labor organi-
zation and had no obligation to do so. To the contrary, it
continually thereafter bargained with the Union for over a
year, and, through November 1990, was at all such times
prepared to sign a collective-bargaining agreement with the
Union. No sign of union defunctness there.
Furthermore, as will be seen in later discussion, Respond-
ent continued the practice of administering discipline to its
employees only in the presence of union shop stewards,
which practice apparently exists to the time of the present
hearing. Moreover, the evidence shows that Robert Thomas,
on behalf of the Local Union, has been engaged in, and is
engaging in, at all material times, the negotiation of collec-
tive-bargaining agreements not only with Respondent, but
with nearby employers engaged in the warehousing and dis-
tribution of iron and steel products. Thus, insofar as Re-
spondent suggests and argues that the Union is defunct in the
sense that it has lost its existence, the evidence is all the
other way. Respondent’s argument for union defunctness, re-
lying on the mere loss of local independence, in the sense
of the local union having its own elected officials and the
substitution by the International of an administrator, is a le-
gally and factually untenable position. Substantial changes in
local union hierarchy are not the death knell of the local, cer-
tainly not a basis for inferring defunctness in the present
case. Certainly not where Respondent recognizes the admin-
istrator and the Union’s erstwhile stewards as its opposite
number in continuous, subsequent bargaining. Compare:
Bickerstaff Clay Products, 286 NLRB at 299; see Robinson
Bus Service, 292 NLRB 70 (1988).
During the hearing, Respondent appeared to switch its po-
sition so that the claimed ‘‘defunctness’’ was not directed to
the Charging Party’s total loss of a factual and legal identity;
rather, whatever its existence and activities elsewhere, its ex-
istence allegedly ceased in Respondent’s two facilities. Even
that argument, however, is not supported on the facts. In the
first place, whether or not Respondent was bargaining with
the Union under the obligation of a Board order, as it
claimed, as late as September 25, 1990, in the last collective-
bargaining session (G.C. Exh. 35), it was nevertheless fully
prepared to sign a collective-bargaining agreement with the
Local Union. An employer does not ordinarily execute a col-
lective-bargaining agreement governing a relationship di-
rected at its 100 employees with a defunct union. Further-
more, as in its claim of absolute defunctness, Hess never
suggested to Thomas (or to anyone else), at any time, that
he was negotiating with a chimera or a ghost. Respondent
never suggested to the NLRB Regional Office (with whom
it was in constant contact, supplying it with copies of its cor-
respondence with the Union) that the Union was moribund,
much less that it actually was defunct. Moreover, the testi-
mony of Plant Manager Martin Flanagan demonstrates that
as late as August 1990, more than a year after the claimed
June 16, 1989 defunctness, in administering discipline to a
truckdriver employee (O’Keefe, Tr. 356), he inquired wheth-
er O’Keefe wanted his shop steward present prior to the for-
mal discipline. Long after the November 1988 expiration of
the contract, Flanagan has continued his practice of causing
the Union’s shop stewards to be present when disciplining
unit employees even through the time of this hearing (Tr.
369-373). In addition, Flanagan admitted that it was possible,
following his normal procedure, that he nevertheless in-
formed the Union, as late as August 1990, that he had dis-
ciplined a unit employee even though the employee had spe-
cifically rejected Flanagan’s suggestion of the presence of
the shop steward (Tr. 374). Such consistent engagement of
union representatives in plant discipline demonstrates not
only the vitality of the Local Union but Respondent’s affir-
mation of that vitality by requiring or insisting on the partici-
pation of the bargaining representative in the statutory affairs
of unit employees.
Furthermore, Fabrication Shop Manager William
Dmyszewicz admitted that while he and the union members
of the plant safety committee (Shop Steward Turner, Union
Officer Ashley together with employee Holmes) had not met
since July 1989, he nevertheless regarded the union members
of the safety committee as continuing to be the representa-
tives on that committee; and that it was his present intention
to have further meetings of the safety committee (Tr. 348–
349). and union representatives have continually pressed for
meetings (Tr. 216 et seq.) As Respondent’s safety officer, he
conceded that the failure to convene further meetings was a
matter of his own negligence (Tr. 347), rather than union ne-
glect. Lastly, the Union also protested the implementation of
Respondent’s drug testing program in December 1990 (G.C.
Exh. 26). This is not evidence of defunctness.
Under these circumstances, I conclude that Respondent has
failed to prove that, at any material time, the Union was
‘‘defunct’’ either in the sense (1) that it no longer had a fac-
tual or legal existence; or (2) that it was sufficiently mori-
bund in Respondent’s facilities as the representative of em-
ployees in the production and maintenance unit so that it
could be successfully and lawfully disregarded as the statu-
tory representative. The actions of the Union and Respond-
ent’s supervisors and bargainers are directly to the con-
trary.11
450 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
12 To the extent Respondent further defends by urging (1) a change
in the Board’s alleged requirement of direct evidence of employee
anti representative sentiment to support a good-faith doubt defense;
(2) the Board to reconsider its analysis of the ‘‘in fact’’ and ‘‘good
faith doubt’’ standards for lawful withdrawing of recognition; and
(3) the holding of an election, I respectfully refer Respondent to the
Board.
2. Respondent’s good-faith doubt of Union’s
majority status
Respondent’s alternate, and perhaps principal, defense,12
as I understand it, was its assertion that certainly no later
than April 1, 1991, it had a reasonably based good-faith
doubt of the Union majority representative of the unit em-
ployees. As above noted, Respondent, on April 1, 1991, re-
fusing to supply requested relevant information, formally no-
tified the Union in writing of its reasons for entertaining a
belief that the Union no longer represented a majority of the
employees in the unit (G.C. Exh. 31). Respondent’s answer
admits that this constituted a withdrawal of recognition of
the same date.
(1) The first listed reason was that the Union walked out
of the September 25, 1990 negotiations, refused to accept
Respondent’s last proposal, and stated that it had no more
proposals for Respondent.
The most that Respondent is arguing that the Union re-
fused to advance further proposals and that the parties were
at impasse. Impasse, however, is not a basis on which to
doubt the Union’s representative status. Valley Kitchens, 287
NLRB 686, 690 (1987). While the Board is not bound by a
party’s expression that the negotiations are at impasse, West-
chester County Executive Committee (Builders Institute), 142
NLRB 126, 127 fn. 2 (1963); Pillowtex Corp., 241 NLRB
40, 46 fn. 11, enfd. 615 F.2d 917 (5th Cir. 1980), I will as-
sume, arguendo, that the parties were actually at impasse es-
pecially since the Union was adamant in its position and Re-
spondent, in its September 25, 1990 letter to the Union
claimed that the Union had rejected its final offer and the
Union intended to take no further proposals. Since impasse
is a ‘‘temporary deadlock or hiatus in negotiations,’’ Huck
Mfg. Co. v. NLRB, 693 F.2d 1176, 1186 (5th Cir. 1982), cit-
ing Charles Bonanno Linen Service v. NLRB, 454 U.S. 404,
70 L. Ed. 2d 256, 664 (1982), it may be assumed, arguendo,
that, as of September 25, a legal impasse incurred.
Whether or not impasse occurred, at the September 25,
1990 session, however, it was surely broken by the Union’s
September 27, 1990 letter (G.C. Exh. 24) to Respondent (re-
ceived on October 1, 1990) advising Respondent that the
Union was ‘‘prepared to continue the negotiations and . . .
prepared to submit and discuss proposals in an attempt to re-
solve the many issues that have not been resolved . . . [and
requesting Respondent to indicate] . . . whether or not you
intend to continue negotiations.’’ This union communication
to Respondent breaks the impasse on two grounds: (a) Since,
to create impasse, both parties must believe that they are at
the end of their bargaining rope and that future bargaining
will be futile, Huck Mfg. Co. v. NLRB, supra, the Union’s
letter to Respondent, proposing and inviting further negotia-
tions, stating its intent to submit and discuss ‘‘proposals’’ to
‘‘resolve the many issues that have not been resolved,’’ dem-
onstrates that the Union believed that future negotiations
would not be futile. See Huck Mfg. Co. v. NLRB, supra, PRC
Recording Co., 280 NLRB 615 (1986), enfd. sub nom. Rich-
mond Recording Corp. v. NLRB, 836 F.2d 289 (7th Cir.
1987); and (b) anything that creates a new possibility of
fruitful discussion (even if it does not create a likelihood of
agreement) breaks an impasse including the mere passage of
time and particularly implied or explicit bargaining conces-
sions. See Gulf States Mfg. Co. v. NLRB, 704 F.2d 1390 (5th
Cir. 1983).
The Union’s September 27 letter (G.C. Exh. 24) also spe-
cifically requested Respondent to indicate whether Respond-
ent intended to continue negotiations. Such a communication
openly states an intent to resolve outstanding issues by fur-
ther negotiations and proposals. Thus, I conclude, on the
above authority, that any September 25, 1990 impasse was
broken by Respondent’ receipt, on October 1, 1990, of this
Union’s September 27 letter (G.C. Exh. 24), demonstrating
a desire to bargain with implications of softening of its posi-
tion. Cf. Gulf States Mfg. Co. v. NLRB, supra.
I have already rejected and discredited Hess’ testimony
(Tr. 413) that Respondent did not receive this September 27
union letter until a month after Respondent sent its Septem-
ber 25 letter to the Union. By October 1, 1990, having al-
ready received the Union’s September 27 letter, Respondent
knew of the Union’s desire to bargain. But Respondent’s
subsequent November 27 letter to the Union (G.C. Exh. 25),
alluding to the Union’s failures to attend the scheduled Octo-
ber 2 meeting, failure to suggest further dates for negotia-
tions, continuing union silence, impasse, and the futility of
further bargaining unaccountably makes no reference to its
having already received the Union’s September 27 letter
(demonstrating the Union’s desire for further negotiation to
resolve the outstanding issues). I have already concluded that
any impasse was broken by this Union’s September 27 letter
received by Respondent on October 1, 1990.
Not only is the existence of alleged impasse a non sequitur
rationale for supporting an objective criterion establishing a
good-faith doubt of union majority status; but, Respondent’s
assertion of impasse nevertheless does have significance.
President Hess’ testimony of not receiving the Union’s Sep-
tember 27 letter before the scheduled October 2 meeting was
false. He actually knew of the Union’s presence through and
by its express desire to negotiate. Hence it bears both on his
good-faith doubt and his assertion of the Union’s
‘‘defunctness.’’
(2) Respondent’s second reason in its April 1, 1990 letter
on which it bases the existence of its good-faith doubt again
relies on its prior letter to the Union of September 25, 1990
(G.C. Exh. 23). That letter reminded the Union of the pre-
viously established dates for future negotiations (October 2
and October 3) and the April 1991 letter recounts the
Union’s failure to appear at such dates and failure to ask for
any future negotiation dates. Such assertions seem to me, as
above noted, to ignore perhaps the pivotal fact in this litiga-
tion: the Union’s September 27 letter, which Respondent re-
ceived on October 1, expressly establishing the Union’s de-
sire to continue negotiations, notwithstanding that it did not
thereafter appear on the previously established dates of Octo-
ber 2 and October 3. Since Respondent, on October 1, 1990,
knew of the Union’s desire to continue to negotiate, Re-
spondent’s second reason fails to support the conclusion that
the Union no longer represents the unit majority. During the
hearing, Respondent also repeatedly pointed to Thomas’
451ALBANY STEEL
twice abruptly leaving bargaining sessions. When the Union,
however, did not appear on October 2 and 3, Respondent
nevertheless already knew (on October 1) of the Union’s de-
sire to continue to engage in collective bargaining. The
Union’s failure to appear on October 2 and 3 and its failure
to propose specific alternate bargaining dates do not here
form the basis of a good-faith doubt of the Union’s contin-
ued majority status. Like the first ‘‘reason’’ (impasse), this
second reason is a non sequitur. This second basis for a
good-faith doubt, in short, omits reference to the Union’s
pivotal letter of September 27, written after Thomas walked
out of the September 25 meeting and received by Hess be-
fore the October 2 and 3 scheduled meetings. Again this let-
ter evinces the Union’s desire to continue to bargain in order
to reach agreement. Respondent’s failure to refer to it in es-
tablishing a basis for Respondent’s good-faith doubt is a sig-
nificant omission, a misstatement of fact.
(3) The third reason advanced by Respondent for its good-
faith doubt in its April 1, 1991 withdrawal of recognition
(G.C. Exh. 31) is the Union’s silence following an alleged
[but discredited] continuing impasse in the face of the notice
of Respondent’s intention to unilaterally implement Respond-
ent’s previously offered wage increase. The Board’s rule is
that unilateral implementation may be lawfully made in the
face of a lawful impasse, compare: Gulf States Mfg. Co. v.
NLRB, 704 F.2d 1390 (5th Cir. 1983); Intermountain Rural
Electric Assn., 305 NLRB 783 (1991). The mere fact that the
Union, with knowledge of Respondent’s intentions, did not
object to the unilateral implementation does not demonstrate
that the Union either is defunct or that it has lost its majority
status. It demonstrates that the Union, with notice, failing to
claim a lack of impasse, has acquiesced in the employer’s
action, whether lawful or unlawful. Such union passivity
hardly supports an inference that it has lost its majority sta-
tus. The Union’s silence of 4 months following this Decem-
ber 1990 wage implementation is not dispositive in view of
the Union’s December 1990 letter protesting unilateral imple-
mentation of Respondent’s drug testing program, and its Sep-
tember 27 letter (G.C. Exh. 24) to Respondent, placing on
Respondent the obligation to set the dates for further bargain-
ing. Thus, the 4-month hiatus fails to show the Union’s aban-
donment of the unit or its defunctness. Robinson Bus Service,
292 NLRB 70 (1988). Even a 7-month hiatus, in the absence,
as here, of employee turnover, does not create an objective
basis on which to doubt majority status. Southern Wipers,
192 NLRB 816 (1971); King Soopers, 295 NLRB 35 (1989).
(4) The fourth reason advanced by Respondent for its har-
boring a good-faith doubt of the Union’s majority status is
that the Union allegedly failed to respond to the employer’s
alleged offers to negotiate. Respondent points only to the
Union’s failure to show up for bargaining on October 2 and
3. The Union, I have found, crediting Thomas, failed to ap-
pear because it wanted to dissipate the heat of prior negotia-
tions and to permit the bargaining climate to cool down after
Thomas’ storming out of the room on September 25. Other
than Respondent’s September 25 letter, it made no further
offer to negotiate. The Union’s September 27 letter requested
negotiations. Respondent’s November 27, 1990 letter (G.C.
Exh. 25) to the Union, unaccountably omits reference to the
Union’s request to bargain and states that it is the Union’s
fault in failing to make further proposals and that the union
silence over a 2-month period demonstrated that there was
not a ‘‘realistic possibility that a continuation of bargaining
at this time would be fruitful.’’ Whatever else Respondent
means, this is hardly an invitation to the Union to continue
to bargain. I conclude that Respondent’s fourth reason for a
good-faith doubt, that there was no response by the Union
to Respondent’s alleged offer to bargain, and that the Union
failed to appear on October 2 and 3 are irrelevant. Respond-
ent, by October 1, already knew that the Union wanted to
bargain. Respondent didn’t desire to bargain (‘‘futile’’) and
in any event, never answered the Union’s September 27 re-
quest to resume bargaining.
Furthermore, as above noted, the Union expressly (G.C.
Exh. 24) placed the burden on Respondent to communicate
an intention to continue negotiations. Respondent failed to do
so or to supply additional bargaining dates. Starting in Octo-
ber 1990, Respondent was content and the Union was con-
tent with the existing hiatus in bargaining. The Union sup-
plied the reason for that hiatus: its desire to have things cool
off, even in the face of Respondent’s unilateral December
1990 implementation of the wage increase. Such a state of
facts does not support an objective criterion on which to con-
clude that the Union has lost its majority status or was de-
funct. I regard ‘‘reason’’ No. 4 as failing to support or estab-
lish any such inference. See Southern Wipers, supra; Robin-
son Bus Service, supra.
(5) The fifth reason for a good-faith doubt was Respond-
ent’s understanding that the Union was no longer holding
union meetings. As above noted, Thomas and the shop stew-
ards testified that there were informational meetings held in
the union hall and in Thomas’ Albany hotel room. There was
no contrary testimony. While the argument might more ap-
propriately support an argument for defunctness, it seems to
me, under the instant facts, to be less probative of proof of
the Union’s loss of majority status. In any event, Respond-
ent’s understanding is not supported by the facts. Any seri-
ous Respondent doubt of the Union’s existence, before April
1991, could have been satisfied by a telephone call, letter,
or further direct inquiry to the shop stewards concerning
union meetings of unit employees or of Thomas and the
stewards. However, even if there had been no meetings, such
a state would not support a good-faith doubt on which to
withdraw recognition. Petosky Geriatric Village, 295 NLRB
800 (1989).
(6) The sixth reason for Respondent possessing a good-
faith doubt of the Union’s majority status is that it was not
‘‘aware’’ of any unit employees who were designated as
shop stewards and, similarly, of any union effort to police
unit employee rights in over a year. In support of this posi-
tion, Respondent presented the testimony of several wit-
nesses. In particular, Plant Manager Mark Flanagan testified
concerning an August 1990 conversation with a unit em-
ployee, truckdriver O’Keefe. Flanagan, having serious prob-
lems with O’Keefe, decided to administer discipline. Flana-
gan asked O’Keefe whether he wanted a shop steward
present at the time of administering the discipline. O’Keefe
answered: ‘‘What fucking steward. There is no fucking
Union here.’’ After this conversation, Flanagan delivered a
written warning to O’Keefe with no shop steward present.
Flanagan nevertheless continues the practice of not admin-
istering discipline except in the presence of the union shop
steward, a practice which existed during the term of the col-
lective-bargaining agreement and which has continued to the
452 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
13 Both the Union and Respondent used only certified mail in their
written communications to each other. Hess produced neither a file
copy of the letter nor, more significantly, a Postal Service green-card
receipt of service.
14 In view of the above finding, I technically need not reach or
decide the question whether Hess actually wrote a letter to Thomas
in the spring of 1990 requesting identity of the shop stewards. The
pervasive acrimony of the parties precludes Hess’ failure to follow
his (and the Union’s) practice of using only certified mail in their
written communications. Had there been such a letter, it would have
been certified and there would have been a Postal Service receipt.
I note, however, that Thomas, present throughout the hearing, was
not called in rebuttal to deny receipt of such a letter. Were the find-
ing necessary, I would nevertheless conclude that no such letter was
sent to the Union and that Hess’ testimony was a fabrication.
present time (Tr. 372–373). He also appears to have contin-
ued his practice of notifying the Union of an act of discipline
regardless of the absence of the steward.
Plant Manager Flanagan also testified concerning a con-
versation with Shop Steward Ben Bylo in the summer of
1990 (Tr. 357). Flanagan asked him: ‘‘What’s going on with
the Union?’’ Bylo responded: ‘‘What Union?’’ When Flana-
gan again asked him whether he was the shop steward, Bylo
answered that he did not know if he was the shop steward
and did not know if there was a union. Both Flanagan and
Bylo were chuckling during this exchange (Tr. 358). Bylo,
though a witness for General Counsel, was not recalled to
deny or elaborate on this conversation. Consequently, I credit
in full Flanagan’s testimony on this point.
President Hess testified that for about a year (apparently
a year commencing before the hearing) he was not sure
whether ‘‘we had any shop steward.’’ (Tr. 426); that an em-
ployee Macki (Tr. 426) had resigned as shop steward; and
that Shop Steward Bylo, as above-described, told Plant Man-
ager Flanagan that he did not know if he was shop steward
anymore or indeed whether there was a union anymore (Tr.
426). Further, Hess testified that he sent a short letter to
Thomas, asking him to advise Respondent who the shop
stewards were and never got a response. Although he testi-
fied that he sent the letter in the spring of 1990, Hess could
not produce a copy of the letter (Tr. 427),13 and when he
failed to receive a reply from Thomas, he did not follow up
the letter. Then, contradicting earlier testimony, he said that
he knew that Frank Turner was the shop steward, that he
continued as a Respondent employee, and that Turner was
the only shop steward that he knew about (Tr. 471). In view
of his earlier testimony that (1) he was unsure whether Re-
spondent had any shop stewards (which of course was false
testimony) and that (2) he received no answer to the alleged
letter he wrote to Thomas in the spring of 1990 (inquiring
who the shop stewards were), he was asked why he failed
to question Frank Turner on the existence of union stewards
when he knew him to be a union steward (Tr. 429). He testi-
fied that he did not ask Shop Steward Turner who the shop
stewards were because he did not know if it was an unfair
labor practice to ask him if he was shop steward. He further
testified that he wanted to learn who the shop stewards were
either through the Union or through voluntary conversations
that he might have with his supervisors or employees (Tr.
430).
I do not credit Hess’ testimony. He admitted that he knew
that Frank Turner had been, and still was, a shop steward,
indeed the chief shop steward in Respondent’s plant. This
Hess testimony (Tr. 471), again, discredits his own earlier
testimony (Tr. 426) that he was not sure whether there were
any shop stewards anymore. In short, all he had to do was
to ask Frank Turner if he were the shop steward or if there
were any other shop stewards in the plant. This Hess failed
to do. Plant Manager Flanagan saw no danger in asking Ben
Bylo what was going on in the Union and if he was a stew-
ard (Tr. 357–358). If Hess were actually concerned whether
any such question to Turner, or to other employees, would
amount to an unfair labor practice, he had only to first con-
sult his lawyer with whom he was in direct and continuous
communication all through the collective-bargaining sessions
in the spring of 1990 and thereafter.14
In addition, Hess’ testimony contradicts the testimony of
Plant Manager Flanagan. If Flanagan was repeatedly seeking
the presence of shop stewards (when he administered dis-
cipline) not only in 1990, but even through the time of the
instant hearing, this Flanagan practice should have eliminated
any doubt Hess harbored whether there were shop stewards.
Such an unwavering practice would necessarily throw in
doubt Flanagan’s report of Steward Bylo’s statement ques-
tioning whether he was still shop steward or whether there
was still a union. Respondent’s continued disciplinary prac-
tice of repeatedly consulting the shop stewards, in the pres-
ence of Hess’ admission (Tr. 464) that the Union identified
its shop stewards only when there had been a change in
steward designation, demonstrates that President Hess could
have no good-faith doubt concerning the Union’s continued
majority status based on his alleged doubt that any employ-
ees were still shop stewards. Of the enumerated reason on
which his good-faith doubt of majority status was predicated,
the alleged lack of knowledge of the existence of shop stew-
ards is the least credible (G.C. Exh. 31, par. 6). Not only
does it fail to support Respondent’s burden to prove a good-
faith doubt, but it establishes Hess’ incredibility (fabrication;
self-contradiction) and bad faith.
Furthermore, with regard to the Union’s efforts to police
employee rights during the year following the expiration of
the contract, as alleged by Hess as a further basis for good-
faith doubt (G.C. Exh. 31, par. 6), Hess testified that what
he meant by that was that there had been no grievances filed
(Tr. 430). But the invariable presence of shop stewards when
Respondent’s plant manager administered discipline shows
that the Union was present and involved in the protection of
employee rights. In view of Hess’ testimony (Tr. 430) that
there had been no grievances filed for 3 or 4 years, it would
seem that that lengthy period existed during the term of the
expired collective-bargaining agreement. If the Union was
lax in filing grievances, for whatever reason, during the term
of the contract, then a postcontract failure to file grievances
constituted no change in the Union’s practice. If there was
no change in the Union’s practice, then the failure of the
Union to ‘‘police employee rights’’ by failing to file griev-
ances in the year since contract expiration (November 1988)
was not inconsistent with the prior practice. In such a case,
such a failure could hardly excite sufficient attention on
which to predicate a good-faith doubt of the Union’s contin-
ued majority status or that the Union’s inactivity showed that
453ALBANY STEEL
15 General Counsel also notes that Thomas told his stewards to use
discretion in filing grievances in the absence of an arbitration provi-
sion (due to the expiration of the collective-bargaining agreement)
(Tr. 100).
it had abandoned the unit. Colonna’s Shipyard, 293 NLRB
136, 140 (1989).15
(7) As a seventh basis on which to predicate a good-faith
doubt, Hess asserted that the local Union no longer had offi-
cers and was ‘‘essentially defunct as a local’’ (G.C. Exh. 31,
par. 7). I have already discussed, above, the question of
defunctness, in general, and the local Union’s defunctness in
particular. The Union maintained, and Respondent utilized,
the shop stewards. Its failure to have officers is not a basis
for a good-faith doubt in view of the International Union’s
designation of Robert Thomas as the Local administrator and
especially Hess’ thereafter recognizing and bargaining with
Thomas in such capacity for several months, negotiating to-
ward a collective-bargaining agreement. I therefore find that
Local 534, whose affairs were administered by Thomas as
administrator, and by its shop stewards, was not defunct. Its
failure to have officers does not serve as a basis for Hess’
good-faith doubt as to his majority status among his employ-
ees.
(8) As the eighth and final basis of Hess’ good-faith doubt
of the Union’s majority status, he urged that very few if any
of the employees have remained members of the Union, and
that none of them were paying dues (G.C. Exh. 31, par. 8).
In that same paragraph, Hess further asserts that ‘‘most em-
ployees of Albany Steel believe that they are not represented
by a Union’’ (G.C. Exh. 31, par. 8).
With regard to whether employees, or any of them, have
remained members of the Union, Respondent adduced proof
from four employees (Molnar, Elliott, Musella, and Freeman)
only two of whom (Molnar and Elliott) were unit members.
Neither of them resigned from the Union (Tr. 277, 293, 309).
With regard to the failure of unit employees to pay union
dues, it must be recalled that the collective-bargaining agree-
ment with its dues-checkoff provision expired on November
30, 1988. The checkoff clause was thereafter no longer en-
forced by Respondent. Thomas testified that he told the em-
ployees that dues payments thereafter were voluntary (Tr.
108–109), apparently due to the fact that there was no collec-
tive-bargaining agreement. The employees no longer remitted
dues to the Union. In any event, union membership and/or
the failure to pay dues is not necessarily a demonstration of
the lack of union support. It is union support rather than
union membership or dues payment which is the crucial fact.
The lack of union membership and/or lack of dues payment,
even if true, does not demonstrate a lack of union support.
I conclude that even if these elements were true, Respondent
could not, on these facts alone, prove a good-faith doubt of
the Union’s continued majority status, Stratford Visiting
Nurses, 264 NLRB 1026 (1982); United Supermarkets, 214
NLRB 958, review denied 524 F.2d 239 (5th Cir. 1975). The
issue is whether the employees do not want the Union to rep-
resent them, rather than whether, without the benefit of a
bargaining agreement, they want to pay dues to support the
Union. Compare: Phoenix Pipe & Tube, 302 NLRB 122
(1991). ‘‘Majority support’’ refers to union representation not
financial support or union membership. Manna Pro Partners,
304 NLRB 782 (1991); Petoskey Geriatric Village, 295
NLRB 800 (1989). See Orion Corp., 210 NLRB 633 (1974).
There was testimony, however, that before the November
30, 1988 contract expiration, most of the 30 or 40 employees
on a warehouse shift did not ‘‘want the union’’ (Tr. 282).
Such testimony, even if fully credited, is not probative of
unit employee sentiment: for at that time, in the fall of 1988,
certainly at the two meetings of September 16, 1988, Hess
was engaged in unlawfully sponsoring decertification of the
Union and telling employees how much he hated the Union
and wanted to throw the union bargainers out of the window
(G.C. Exh. 3A, pp. 17–19).
Respondent further asserts in paragraph 8, in support of a
good-faith doubt, that ‘‘most employees of Albany Steel be-
lieve that they are not represented by a Union’’ (G.C. Exh.
31). In support, Respondent presented the testimony of sev-
eral employees, as above noted, as well as the testimony of
President Hess.
Joe Molnar, a machine operator and member of 13 years,
testified that he was no longer a union member although he
did not resign membership. He said he did not feel that there
was a union in the shop, noting that prior to the contract ex-
piration in November 1988, the Union was active. He said
he had heard nothing from the Union for 2 to 3 years, heard
of only one union meeting in 3 years and that was in July
1991. He testified (Tr. 282) that in the end of November
1988, with the expiration of the contract, 30 to 40 warehouse
employees told each other that they did not want the Union;
that they did not want to be union members and just wanted
to be left alone (Tr. 284). These antiunion statements, as
above noted, coincided with Hess’ unlawful activities and
antiunion statements of the most unequivocal variety. Subse-
quent employee statements are not probative of employee
antiunion sentiment. Molnar admitted that he did not see eye-
to-eye on ‘‘anything’’ with the Union and did not like Union
President Michael O’Connell because there were personal
problems he had with O’Connell. He testified that he had re-
signed from the Union twice, in two strikes had crossed the
picket line, and had rejoined the Union on two occasions.
Molnar’s testimony that employees wanted to be free of
union ‘‘membership’’ (Tr. 284) is not the same as not desir-
ing union representation Weathercraft Co. of Topeka, 282
NLRB 1127, 1129 (1987).
Phillip Elliot, also employed for 13 years, was a union
member before contract expiration. His testimony was un-
clear concerning whether before and after contract expiration
he heard much conversation concerning the Union. At no
time, he testified, was there much talk about the Union on
the shop floor. During contract negotiations, the Union mere-
ly told the employees what its contract aims were but the
employees had nothing to say about it (Tr. 298).
With regard to shop stewards, he had little relationship
with them because they (the union members) were ‘‘a clique
in the back.’’ He clearly testified that after November 1988,
contract expiration, many of the employees talked about the
Union and said they did not want the Union. This, however,
was in the period of Hess’ ferocious antiunion conduct. For
a period of 2 years, he testified, he had not heard much
about the Union, had not seen anything on the bulletin board
and thought that there was no union. In cross-examination,
however, he contradicted his earlier testimony that during
contract terms there was talk about the Union (compare Tr.
454 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
295–296 with Tr. 305). The only time he heard employees
talk about the Union or there was talk about the Union from
any source was when the employees were voting on a union
contract. He said this condition existed in the 13 years of his
employment and that there was no talk about the Union
while the contract was in effect.
Employee John Musella testified that he ceased being a
unit employee and became a nonunit inventory clerk in De-
cember 1990 after being first employed in May 1988; that
in 1988, employees said nothing about the Union except that
one had to be a union member in order to be employed (Tr.
321). He heard no conversations about the Union in his 2
years’ of employment other than that above-described and he
never talked to employees about the Union (Tr. 322). He re-
calls that in the period subsequent to his employment in May
1988, he saw union notices on the company bulletin board
but observed that they did not last long on the bulletin board,
‘‘they just get taken down’’ (Tr. 327). He made no affirma-
tive steps to resign from the Union.
Robert Freeman, a nonunit employee for the past 3 years,
testified that during contract negotiations, there was always
talk about the Union but nobody knew anything (Tr. 340–
342). During the contract term, however, there was not much
talk about the Union and this was the same pattern that he
noticed during his 15 years of employment (Tr. 342).
The testimony of these employees (except for Molnar) that
they do not need union representation, are critical of union
representation, and are content without it—does not amount
to an unequivocal desire no longer to be represented by the
Union. Phoenix Pipe & Tube, 302 NLRB 122 (1991). As
above noted, the expressions of antiunion sentiment, even if
amounting to rejection of representation, lose probative value
when measured against Hess’ contemporaneous expressions
of union animus and his unlawful activity.
Most of Respondent’s evidence supporting the assertion
that most employees believed that they were not represented
by a union came from President Hess. Hess testified that in
the fall of 1990, Respondent held eight meetings (G.C. Exh.
27) with all of its employees working the three shifts at the
two company locations. These employee meetings were
based on, and followed, Respondent’s implementation of an
employee assistance program mandated under the Federal
Grievance License Law (Tr. 432) originally establishing drug
testing of drivers who deliver to the property of employers
having contracts with the Federal Government (Tr. 432 et
seq.).
In those eight meetings of all employees, devoted to films
and other materials concerning drugs and the dangers of
drugs (Tr. 434), questions arose whether certain procedures
were covered under the union contract, including questions
concerning vacations (Tr. 435). Hess himself attended seven
of the eight meetings. In those meetings, he testified, when
a question was raised whether a problem was covered under
the union contract, there would be a ‘‘sprinkling of laughter
around the room’’ (Tr. 435), and there would be a ‘‘discus-
sion as to whether the Union still represented the employees
or not’’ (Tr. 435). From the comments he heard, Hess con-
cluded that employees ‘‘didn’t think they were represented
by a union’’ (Tr. 435). When later asked specifically whether
the employees discussed whether the Union no longer rep-
resented the employees, Hess denied such discussion (Tr.
438). Hess testified that his written assertion (G.C. Exh 31,
par. 8) to the Union concerning the loss of union majority
status was based in part on his experiences at those seven
sessions which he attended (Tr. 436).
The employee meetings
Hess particularized the nature and extent of the eight meet-
ings. Hess, present at 7 of the 8 meetings, testified that there
were 12 to 14 employees at each such meeting (Tr. 437). He
did not attend the eighth meeting at the machine shop at the
Selkirk New York plant where there were 17 to 20 employ-
ees present. At only three of the seven meetings that he at-
tended was the Union [‘‘what union’’] was brought up (Tr.
438–440).
Hess, in testifying that there was scattered laughter in the
comments concerning the union contract and whether a par-
ticular issue was covered in the union contract (Tr. 480), said
he heard employees say that they did not ‘‘have a union’’
and they inquired whether the contract was still applicable
(Tr. 480–481). Hess also testified that, with the expiration of
the contract, while both the union security and the dues-
checkoff clauses were no longer in effect Respondent contin-
ued to apply the remaining terms and conditions of the con-
tract (Tr. 483) except for the unilateral wage increases of De-
cember 1990. The drug program was also separately imple-
mented (Tr. 483). Dues checkoff and union security had
ceased (Tr. 484).
President Hess’ testimony shows that although about 100
percent of the 100 employees attended the 8 meetings, he
was not present at the meeting in the Selkirk, New York
plant, with its 17 to 20 employees. Of the remaining 80 em-
ployees in the 7 meetings that he attended, the employees
were addressed in groups of 12 to 14 each. As Hess admit-
ted, in only three of seven meetings did the question of the
Union arise. Assuming therefore that there were 14 employ-
ees at each of the 3 meetings he attended, and assuming,
arguendo that everyone of the 14 employees at these 3 meet-
ings shared in the laughter and questioned the existence of
the Union and further, by their laughter, or otherwise,
arguendo demonstrated antipathy to union representation,
Hess could have thereby ascertained the antiunion feelings of
no more than 42 or the unit employees. Under no cir-
cumstances, therefore, would his assertion that ‘‘most em-
ployees of Albany Steel believed that they are not rep-
resented by a union’’ be substantiated by what he heard at
these seven meetings. Again, only a minority of the employ-
ees, on his own testimony, were heard to have demonstrated
antiunion feelings. Compare: Marina Pro Partners, 304
NLRB 782 (1991).
Following contract expiration the Union is rebuttably pre-
sumed to continue to enjoy the status of majority representa-
tive. AMBAC International, 299 NLRB 505 (1990).
An employer is justified in withdrawing recognition if, at
the time of withdrawal, either (1) the Union did not in fact
enjoy majority support, or (2) the employer had a ‘‘good
faith’’ doubt, founded on a sufficient objective basis, of the
Union’s majority support. NLRB v. Curtin Matheson Sci-
entific, 110 S.Ct. 1542 (1990); Johns-Manville Sales Corp. v.
NLRB, 906 F.2d 1428 (10th Cir. 1990). For the employer to
avail itself of the good-faith doubt defense, the employer
must produce ‘‘objective evidence’’ to substantiate his doubt
of continuing majority status,’’ Johns-Manville Sales Corp. v.
NLRB, supra, quoting and citing NLRB v. Curtin Matheson
455ALBANY STEEL
16 In the instant case as noted in the text, there is no suggestion
that from Hess’ observation, a majority of unit employees expressed
antiunion sentiments at the meetings. What Hess may have surmised
is another matter.
17 As discussed further in the text, Chairman Stephens, in Phoenix
Pipe & Tube, citing the Supreme Court’s decision in Curtin Mathe-
son, supra, did not ‘‘rely solely’’ on the fact that the 24 statements
of individual employees constituted less than a majority of the unit.
Rather, he found that 15 of the 24 antiunion statements ‘‘were insuf-
ficiently specific to demonstrate a clear repudiation of union rep-
resentation.’’ In addition, he found that nine of the unspecific
antiunion statements were tainted and unreliable because they were
made to managers ‘‘whose own statements might lead the employees
who wanted secure jobs to voice antiunion sentiments . . . a far cry
from a forthright rejection of union representation.’’ (Emphasis
added.)
Scientific, 859 F.2d 362, 370 (5th Cir. 1988, Williams, J. dis-
senting). Whether the evidence demonstrates a sufficient
basis to doubt the union status must be determined in light
of the totality of the circumstances in each case. Station
KKHI, 284 NLRB 1339, 1334 (1987).
In Johns-Manville Sales Corp. v. NLRB, supra, the Court
of Appeals for the Tenth circuit denied enforcement of the
Board’s Order, 289 NLRB 358 (1988), on the ground, inter
alia, that the Board’s insistence on a demonstration that a
majority of the bargaining unit employees made antiunion
statements was a necessary element in the proof of a good-
faith doubt rather than weighing the cumulative effect of all
the evidence. See Johns-Manville Sales Corp. v. NLRB. In
that case, a mathematical majority would have been around
254 employees and the employer showed that it had only ap-
proximately 204 to 211 employees demonstrating antiunion
positions (ibid). The court, in Johns-Manville, as Respond-
ent’s brief notes, observed that Chief Justice Rehnquist, in
Curtin Matheson Scientific v. NLRB, had spoken critically of
the Board’s requirement that individual employees express
desires repudiating the Union in order to establish a reason-
able doubt of the Union’s majority status, ibid. The court of
appeals in Johns-Manville stated that to require direct proof
of employee dissatisfaction limits the availability of the
good-faith doubt defense to instances where dissatisfied em-
ployees come forward and identify themselves in sufficient
numbers to constitute an absolute majority. Such an ap-
proach, the court said, would leave little if anything of the
good-faith doubt rule, ‘‘effectively collapsing into the proof
in fact rule, ‘‘Johns-Manville Sales Corp. v. NLRB.16
In the recent Phoenix Pipe & Tube, 302 NLRB 122
(1991), enfd. 202 F.2d 273 (3d Cir. 1991), however, a major-
ity of the Board (Members Cracraft and Devaney) in adopt-
ing the judge’s finding that the employer failed to prove a
good-faith doubt that a majority of the unit employees sup-
ported the Union, nevertheless relied ‘‘solely on the fact that,
assuming arguendo, the statements of 24 employees [a math-
ematical minority] to various of the Respondent’s managers
were a clear repudiation of the Union, this does not con-
stitute a majority of the unit.’’ On the date that the Respond-
ent denied a union recognition request, there were 54 produc-
tion and maintenance employees in the unit.17
a. Lack of mathematical majority repudiating
Of the 100 unit employees attending the 8 meetings, Hess
attended 7 meetings. The eighth meeting was at the Selkirk
plant with its 17 to 20 employees. Hess did not attend this
meeting and the record does not refer to any antiunion state-
ments among Selkirk employees known by or transmitted to
President Hess. Of the remaining approximately 80 employ-
ees at the 7 meetings which Hess attended, the subjects of
the Union and the union contract, were raised at only 3 of
the meetings. Since Hess testified that about 12 to 14 em-
ployees attended each meeting, it follows that if every em-
ployee at each of the 3 meetings made a statement to ‘‘un-
equivocally repudiate the Union,’’ Phoenix Pipe & Tube,
supra, then Hess would have heard no more than about 42
such statements. Nowhere does Respondent identify anything
other than a half dozen employees or even claim that as
many as 42 employees made antiunion statements, much less
statements that were ‘‘a clear repudiation of the Union,’’
ibid. Certainly, Respondent does not claim to have been in
possession of evidence showing that a majority of unit em-
ployees had individually, collectively, in groups or otherwise
voiced ‘‘clear repudiation of the Union’’ whether by vote,
petition, oral statement, or otherwise.
In 1990, the Supreme Court in NLRB v. Curtin Matheson
Scientific, 110 S.Ct. 1542, 1550 fn. 8, made certain observa-
tions relevant to the above issue. In 1991, the Board, mindful
of the Supreme Court’s statements, issued its Decision and
Order in Phoenix Pipe & Tube, supra. In rejecting the em-
ployer’s claimed good-faith doubt in Phoenix Pipe & Tube,
the Board majority made it clear that it was relying solely
on the employer’s failure to prove that a mathematical major-
ity of unit employees had repudiated (‘‘clearly repudiated’’)
the Union as their representative.
I am an agent of the Board and bound by the Board’s in-
terpretations and rulings, Iowa Beef Packers, 144 NLRB 615,
616 (1963). Phoenix Pipe & Tube states the law: a failure
to prove a repudiation by a mathematical majority rebuts an
employer’s claim of a good-faith doubt that a unit majority
supports the union, any contrary position of Johns-Manville
Sales Corp. v. NLRB, 906 F.2d 1428 (10th Cir. 1990) not-
withstanding. Thus, solely on Phoenix Pipe & Tube, Re-
spondent failed to prove its good-faith doubt to the extent
that it suggests that it showed that majority of unit employ-
ees rejected union representation. Respondent’s disapproval
of the Board rule should be addressed to the Board rather
than to me.
b. Employee statements were not ‘‘clear’’ or
‘‘unequivocal’’ repudiations of union representation
Assuming, arguendo, that Hess heard statements from a
unit mathematical majority, nothing he heard, according to
his testimony, amounted to a ‘‘forthright rejection of union
representation’’ (Chairman Stephens, concurring in Phoenix
Pipe & Tube), or ‘‘a clear repudiation of the union’’ (Board
majority). Much of Hess’ testimony was not clear on what
he actually heard. He concluded that what he heard led to
his belief that the employees at three (out of seven) meetings
who laughed and made antiunion statements were discussing
‘‘whether the union still represented the employees or not.
And I could gather from the comments and questions I was
getting that they didn’t think they were represented by a
union’’ (Tr. 435). What was this conclusion based on? What
did the employees actually say? The employees laughed at
the mention of the union when an employee remarked (Tr.
435, 480): ‘‘What union?’’ (in relation to whether a benefit
456 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
18 The shop stewards, at the plant manager’s insistence, were con-
tinually and repeatedly present at employer acts of discipline. The
Union had not abandoned the employees.
was covered in the expired contract) (Tr. 435); or another
would say: ‘‘We don’t have a union’’ (Tr. 480). When spe-
cifically asked whether the employees, or any of them, said
that there was ‘‘no union’’ ‘‘or that the union . . . no longer
represents the employees’’ (Tr. 438), Hess answered only
that the employees said ‘‘what union’’ (Tr. 438) and then re-
treated into (Tr. 438–439):
At three meetings, the comments ‘‘what union’’
came up and at these three meetings, there was discus-
sion that ensued which lead me to believe that they
didn’t think that they had a union representing them at
those three meetings.
Hess also testified (Tr. 435): ‘‘Some [employees] actually
thought we didn’t have a union.’’
First, these conclusions are not based on what the employ-
ees said. Nothing which Hess identified as an actual state-
ment of an employee showed that any employee was repudi-
ating the union as his representative, certainly not ‘‘clearly
repudiating,’’ Phoenix Pipe & Tube, supra. Second, what
Hess concluded, as his testimony seems to show, was that
the employees were complaining that the Union had aban-
doned them rather than that they repudiated the Union. But
this is not a ground on which Respondent withdrew recogni-
tion. Thus, employee laughter at the mention of the Union,
their taunts of ‘‘what union,’’ and their questions whether the
contract terms were still in effect may well have dem-
onstrated anger over union inactivity or passivity.18 They
demonstrate no repudiation of the Union by the employees.
Third, even if these statements show employee discontent,
anger and contempt for the Union, they do not meet the
Board’s standard of ‘‘clear repudiation.’’
c. Even if employee statements amounted to ‘‘clear’’
repudiations of a unit majority’s desire for continued
union representation, they do not constitute dependable,
credible evidence to support Respondent’s claimed
good-faith doubt
Assuming further, arguendo, that, at these three employee
meetings, a majority of unit employees, by their laughter,
hoots, catcalls and other manifestations of antiunion senti-
ment, demonstrated that they were unequivocally repudiating
the Union as their bargaining representative, such employee
actions do not support a Respondent’s claim of a good-faith
doubt of union majority status.
Following Chairman Stephen’s concurring position in
Phoenix Pipe & Tube, supra, fn. 2, with its citation of NLRB
v. Curtin Matheson Scientific, 110 S.Ct. 1542, 1550 fn. 8
(1990) (not relying solely on failure of proof of loss of a
mathematical majority), these employees’ antiunion state-
ments must be weighed and analyzed in the context supplied
by the events. That context must be measured by the em-
ployees’ being acutely aware of the sole Respondent officer
who was addressing them (at these three meetings).
When employees, raising the question whether a benefit
was covered by the expired union contract, were greeted with
coemployee hoots of ‘‘What union’’ or ‘‘We don’t have a
union,’’ they all knew that any such sentiments were wel-
come to Hess, certainly a principal target of the remarks.
Those same unit employees had recently (September 1988)
had other meetings with President Hess, according to Judge
MacDonald’s uncontested (and now) conclusive findings. At
those meetings (G.C. Exh. 3(A), pp. 17–19), when asked
‘‘why he was so antiunion,’’ Hess told the employees that
he ‘‘hated the fucking union.’’ At a further meeting, when
employees asked him why he did not get along with the
Union, he replied that, at the bargaining table, he ‘‘wanted
to pick them up and throw them out the window.’’
In Phoenix Pipe & Tube, supra, Chairman Stephens found
significant the interviewing supervisors remarks to job appli-
cants that the successor employer was ‘‘opening non-union,’’
so that employee responses—that they did not need a
union—were tainted and could not be considered ‘‘forthright
rejection of union representation.’’ See also Marina Pro
Partners, 304 NLRB 782 fn. 1 (1991). According to Chair-
man Stephens, the interviewing supervisors’ prior statements
to the applicants ‘‘supplied a context that cannot be over-
looked’’ in ascertaining whether the employees had clearly
rejected union representation. The employer’s mild antiunion
position, in Phoenix Pipe & Tube, as Chairman Stephens ac-
knowledged, was not as strong as the employer’s statements
in Middleboro Fire Apparatus, 234 NLRB 888, 894 (1978),
enfd. 590 F.2d 4 (1st Cir. 1978) (‘‘no obligation to recognize
anybody’’). If, concerning an employer’s good-faith doubt,
those Phoenix Pipe & Tube antiunion statements create a
context which renders subsequent employee antiunion re-
sponses (to mere job interviewers) unacceptable proof of em-
ployee rejection of the Union as bargaining representative,
what weight should be given, in the instant case, to ambigu-
ous antiunion employee laughter and statements (‘‘What
union’’; ‘‘we don’t have a union’’) made to the company
president who recently openly sought to have employees un-
lawfully get rid of (decertify) the Union and told these same
employees that ‘‘he hated the fucking union’’ and that he
wanted to throw the union bargainers ‘‘out the window’’?
In short, the employees well knew who they were talking
to and knew that their antiunion remarks, if not expressly in-
vited, were the equivalent of throwing steaks at a tiger.
Antiunion remarks of employees, addressed to Hess, whether
otherwise probative, are tainted, lose their probity and, under
all the above circumstances in the instant case, may not be
used as evidence of employee ‘‘clear repudiation’’ of the
Union as their bargaining representative. Phoenix Pipe &
Tube, supra, Chairman Stephens, concurring. Whether, and
under what circumstances, proof of future employee repudi-
ation of the Union may be deemed acceptable in the forma-
tion of a Respondent good-faith doubt, must await the facts.
I conclude that the eight bases, viewed individually or col-
lectively, on which Respondent, on April 1, 1991, doubted
the Union’s majority status as unit representative, withdrew
recognition, and refused to recognize, were not objectively
grounded and were inadequate foundations on which to infer
a good-faith doubt. It also follows that, as Respondent essen-
tially conceded, Respondent’s April 1, 1991, refusal to sup-
ply (G.C. Exh. 31) the information requested by the Union
on March 14, 1991 (G.C. Exh. 30), was unlawful since based
on Respondent’s contemporaneously unlawful withdrawal of
recognition.
457ALBANY STEEL
19 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
20 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
CONCLUSIONS OF LAW
1. Respondent Albany Steel, Inc. is an employer engaged
in commerce within the meaning of Section 2(6) and (7) of
the Act.
2. The Union, Shopmen’s Local Union No. 534 of the
Bridge, Structural and Ornamental Iron Workers (the Union),
is a labor organization within the meaning of Section 2(5) of
the Act.
3. All production and maintenance employees engaged in
the fabrication of iron, steel, metal and other products or in
maintenance work in or about Albany Steel’s plant or plants
located in Menands, New York and Glenmont, New York;
excluding office clerical employees, draftsmen, engineering
employees, watchmen, guards, and supervisors, constitute a
unit appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act.
4. At all material times, the Union has been, and is, the
exclusive statutory representative of Respondent’s employees
in the above-described unit, within the meaning of Section
9(a) of the Act, for the purposes of collective bargaining
with respect to rates of pay, wages, hours of employment,
and other terms and conditions of employment.
5. Respondent has failed to establish, by objective evi-
dence, that at any material time, it entertained a good-faith
doubt of the Union’s exclusive status as the majority rep-
resentative of its employees in the above-described unit or
that the Union is defunct.
6. Commencing on or about April 1, 1991, by withdrawing
recognition of the Union as the statutory bargaining rep-
resentative of the unit employees, and by then and thereafter
refusing to recognize and bargain with the Union as the ex-
clusive collective-bargaining representative of employees in
the appropriate unit; and by then refusing to furnish the
Union, on the Union’s written request, information relating
to (a) the names, dates of hire, classification, wage rates, and
addresses of unit employees and (b) Respondent’s sub-
contracting of unit work, Respondent thereby engaged in un-
fair labor practices within the meaning of Section 8(a)(5) and
(1) of the Act.
7. Respondent’s unfair labor practices, above-described,
have a close and intimate relationship to traffic and com-
merce among the several States and tend to lead to labor dis-
putes burdening and obstructing commerce and the free flow
of commerce.
THE REMEDY
Having found that Respondent has engaged in certain un-
fair labor practices in violation of Section 8(a)(5) and (1) of
the Act, I shall recommend that it cease and desist therefrom
and from interfering in any like or related manner in its em-
ployees’ Section 7 rights and that it take certain affirmative
action designed to effectuate the policies of the Act.
In particular, I shall recommend, consistent with General
Counsel’s request, that the Board issue a ‘‘broad’’ remedial
cease-and-desist order. This is the third complaint regarding
Respondent’s unlawful activities and the third concerning its
refusal to lawfully recognize and bargain in good faith with
the Union. No matter how unhappy the prospect, Respondent
must now come to terms with the Union under the Act: it
must recognize and bargain in good faith with the Union, no
more, no less.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended19
ORDER
The Respondent, Albany Steel, Inc., Menands and
Glenmont, New York, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Refusing to recognize and bargain with Shopmen’s
Local Union No. 534 of the Bridge, Structural and Ornamen-
tal Iron Workers, herein called the Union, as the exclusive
bargaining representative of its employees in the appropriate
unit, below-described.
(b) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Forthwith furnish to the Union the information origi-
nally requested in writing by the Union on or about March
14, 1991, relating to a list of Respondent’s current unit em-
ployees, including their dates of hire, classifications, hourly
wage rates and home addresses, and the cost of all monetary
fringe benefits including medical premiums paid on their be-
half; and such further information requested by the Union re-
lating to the Respondent’s subcontracting of unit work.
(b) On request, bargain with the Union as the exclusive
representative of its employees in the following appropriate
unit with respect to rates of pay, wages, hours, and other
terms and conditions of employment and, if an understanding
is reached, embody the understanding in a signed agreement:
All production and maintenance employees engaged
in the fabrication of iron, steel, metal and other prod-
ucts or in maintenance work in or about Albany Steel’s
plant or plants located in Menands, New York and
Glenmont, New York; excluding office clerical employ-
ees, draftsmen, engineering employees, watchmen,
guards and supervisors.
(c) Make whole the Union and all unit employees, respec-
tively, for any loss of contributions or pay they may have
suffered by virtue of Respondent’s April 1, 1991 unlawful
withdrawal of union recognition and subsequent unilateral
acts, if any, affecting the wages, hours, or other terms and
conditions of employment of unit employees, and reimburse
unit employees for any expenses resulting from Respondent’s
failure to make or continue contributions to employee benefit
funds.
(d) Post at its Menands and Glenmont, New York facilities
copies of the attached notice marked ‘‘Appendix.’’20 Copies
of the notice, on forms provided by the Regional Director for
458 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Region 3, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent imme-
diately upon receipt and maintained for 60 consecutive days
in conspicuous places including all places where notices to
employees are customarily posted. Reasonable steps shall be
taken by the Respondent to ensure that the notices are not
altered, defaced, or covered by any other material.
(e) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.